Amanda Knox: Italian justice on trial

The handling of the Meredith Kercher murder case should shock anyone interested in fairness and truth.

‘J

3 February 2014

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‘Justice is rather the activity of truth, than a virtue in itself. Truth tells us what is due to others, and justice renders that due. Injustice is acting a lie.’ – Horace Walpole

Last week, a court in Italy found Amanda Knox and Raffaele Sollecito guilty of the 2007 murder of Meredith Kercher in Perugia. This was the third trial of the evidence against the pair – and it is clear that Knox and Sollecito are innocent. What should really be on trial is the Italian justice system.

The tabloids were in heaven after last week’s verdict. ‘Shameless in Seattle’, ‘The Ice Maiden’, ‘Foxy Knoxy Guilty Again’, screamed the headlines. A case that has already lasted longer than the Second World War has brought the Kercher family no nearer to the closure that they deserve. They are trapped in the nightmare that is the Italian justice system, one they were persuaded to sign up to as soon as Meredith was killed. They are co-prosecuting Knox and Sollecito via their civil lawyer Francesco Maresca. When they talk of wanting answers, they do not say that they already believe that they know what happened to Meredith and that is why they have hired a lawyer to sue Knox and Sollecito.

The answers they seek can only come from the convicted lone killer, Rudy Guede, who was prosecuted and found guilty in a separate ‘fast track’ trial in 2008. He was not charged with breaking and entering or with the theft of Meredith’s money, though his DNA was on her purse. These charges were reserved for Knox and Sollecito, although there was no credible evidence that they committed those offences. Guede was never cross-examined in any of the Knox/Sollecito trials, even though he is supposed to have been their co-conspirator. Former FBI agent Steve Moore believes that Guede was a police informant ‘gone bad’ and this connection needed to be hidden. He has been allowed to fade away and is due for release on parole this year.

The sidelining of Guede remains the real unsolved mystery of the case. He is the man who fatally stabbed Meredith, sexually abused her, stole from her and left her for dead, yet we rarely hear his name. Why did the police decide that Knox and Sollecito were involved as soon as they laid eyes on them, why were their phones tapped and why was Knox interviewed and interrogated for 46 hours out of 90 at a time when no forensic evidence was yet available? ‘Intuition’ and ‘behaviour analysis’ does not even come near to explaining this. The mass media are missing the real story. While they endlessly revisit the discredited evidence against Knox and Sollecito, the media are failing to ask who put it there and why.

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Most people have a natural tendency to trust the police. Not in Italy. Knox’s housemates knew better. They hired lawyers immediately. Knox was trusting and wanted to help so she paid the price. She was tricked and framed.

Here, I outline the many barriers that the Italian system, and the weird and often wildly inaccurate discussion of the case, have placed in the way of Knox and Sollecito obtaining justice.

The problem of Italian justice

Italian justice is at a crossroads. Italy has the dubious distinction of being the Western European country with the highest number of negative judgments made against it by the European Court of Human Rights – and by a considerable margin. Many of its citizens have only secured justice after years of struggle when judges outside Italy have corrected multiple wrong decisions.

A 2012 report said that mechanisms put in place to fight corruption in Italy are easily circumvented, while the country’s legal framework is often complex, contradictory and at times ‘controversially implemented’. Italy falls short on many counts, said Lorenzo Segato – director of the Research Centre on Security and Crime, based in Torri di Quartesolo – which carried out the study for the global anti-corruption agency, Transparency International. Problems include questionable institutional integrity, weak control mechanisms, biased news media, and a social code that condones certain illegalities.

Currently, Italy has a backlog of around nine million legal cases: 5.5million civil and 3.4million criminal. The state paid €84million in compensation for miscarriages of justice and legal delays in 2011, when there were nearly 50,000 such claims, compared to 3,500 in 2003. Another €46million was paid out to people unjustly thrown in jail. Some 42 per cent of those in jail – 28,000 people – are awaiting trial, and the prison population of 68,000 inmates is housed in institutions intended for 45,000. There are 1.39 Italian judges for every 10,000 inhabitants, compared with the average of 0.91 in other European countries.

According to the World Bank’s annual report in 2007, Italy ranks 155th out of 178 countries surveyed for efficiency of justice. Court processes last on average 116 months in Italy, against 34 months in Austria, and delays are increasing year on year. Between 1975 and 2004, the duration of civil cases increased by 90 per cent. Between 1999 and 2007, the European Court ruled against Italy 948 times for failing to meet the timing of a fair trial. It is estimated that in each case at least two defendants are involved, so 16million Italians, or one in four of the population, have pending cases. Less than one per cent of corrupt or incompetent judges lose their jobs. Between 1999 and 2006, there were 1,010 disciplinary proceedings, but only six judges were sacked.

Italian jurisprudence is in thrall to dietrologia, rather than Occam’s razor. This means that a complicated, unlikely crime scenario is preferred to a straightforward one. The courts are virtually untouchable and provide a counterbalance to corruptible and frequently changing governments. With near absolute power and no political interference, the law is controlled by the ‘Party of the Prosecutors’, an informal alliance of magistrates who often put saving face ahead of justice. This is the context of the railroading of Amanda Knox and Raffaele Sollecito. Once this is understood, the apparent twists and turns inherent in the Italian process become almost comprehensible.

A simple crime is made complicated

It should have been an open-and-shut case. Burglar breaks in through upper window; resident comes home unexpectedly; there is a fight and the burglar fatally stabs and sexually assaults the resident; burglar flees, leaving prints and DNA at the scene. Burglar is arrested and convicted. The burglar and murderer was Rudy Guede. No credible evidence points to anyone else.

This scenario is not enough for Italy. As we have seen, Knox and Sollecito were convicted in 2009 and acquitted on appeal in 2011. In 2013, the Italian Supreme Court overturned the acquittal and ordered a fresh appeal at which it demanded that a guilty verdict be reinstated. After what can only be called a peremptory trial, the appeal court complied. American commentator Tom Zupancic commented: ‘The take-home message is that this court never had any intention of providing a fair and impartial trial where “reasonable doubt” could be a factor. Rather, it was simply a judicial formality; a staged exercise to provide a format to announce the predetermined decision.’

Many factors have conspired to bring about this judicial nightmare. The foundations for more than six years of anguish for one family and two innocent people were laid on the day Meredith’s lifeless body was revealed behind her locked bedroom door.

The investigation is run by the prosecutor

In Italy, the prosecutor directs the investigation. Before the Kercher case, Prosecutor Mignini had been charged with abuse of office for the wiretapping extravaganza he authorised when he was investigating the Monster of Florence serial-killer case. The Kercher murder offered him a diversion and a chance to rebuild his reputation. The charges against him have now largely evaporated, but this is due to Italian judicial ‘incompetence’, not because they were disproved.

Knox and Sollecito were suspected because of ‘intuition’, not fact, and they were arrested at a time when there was no evidence. Subsequent evidence has been disproved, but suspicion remains – the ‘no smoke without fire’ argument.

Knox and Sollecito were arrested following illegal interrogations

The police claim that Knox and Sollecito did not become suspects until part way through all-night interviews that were not recorded, although this is required by Italian law. This is disingenuous. They had been treated as suspects, though they did not realise this, from day one. Their phones were tapped and their eventual interrogation was led by a team of specialists who had been brought in from Rome. Although the Supreme Court ruled that the statements that resulted were inadmissible at trial, by then they had served the purpose of securing arrests and four-year incarcerations. The evidence, or lack of evidence, was to come later.

Pre-trial detention

Knox and Sollecito were held in custody for a year before they were formally charged. In the USA, suspects have to be charged within two days or released. In the UK there have been fierce debates over the principle of holding even suspected terrorists uncharged beyond 14 days. When you are in custody, you are unable to speak to the media and defend yourself and you are unable to work effectively with your lawyers to prepare your case. The prosecution in Perugia took full advantage of this. They continued to play tricks on the defendants to pressurise them into implicating themselves and each other.

Knox was told that she had been tested and was HIV positive, which was a lie intended to make her reveal a (non-existent) sexual relationship with murderer Rudy Guede. Both defendants had diaries and notebooks stolen and leaked. Conversations between them and their families were secretly recorded, mistranslated and released to the press. Sollecito’s whole family had their phone calls intercepted and over 30,000 calls were monitored. Although Knox and Sollecito were confused, they stuck to the truth.

Police incompetence/corruption

The Italian police philosophy is that the ends justify the means. Once a suspect has been identified, the required evidence appears, osmotically. Police and forensics teams followed the prosecutor’s lead and either destroyed or failed to collect anything exculpatory while producing what can only be described as fabrications that have subsequently been discredited – the knife, the bra clasp, the bathmat footprint, the so-called mixed blood that was really Meredith’s blood smeared around so that the swab collected Amanda’s DNA from her own bathroom. These evidentiary myths have achieved totemic status and have been endlessly repeated by internet bloggers and trolls.

Worldwide media coverage

For tabloid newspapers throughout the world, the case was irresistible. In Italy, there is no restriction on what can be written about suspected criminals before and during a trial, so highly prejudicial coverage was – and continues to be – the norm. What the UK media did to Christopher Jefferies for two days, smearing him for the murder of his tenant Joanna Yeates, has been done to Amanda Knox and Raffaele Sollecito for six years. Journalists did not merely invent stories; they were fed with misinformation by the prosecution.

Confirmation bias

Once people are arrested, confirmation bias sets in. ‘Well, they must have done something. The police wouldn’t arrest them for nothing. The police deserve support. They know what they are doing.’ This was amplified by a PR operation fed from the prosecutor’s office via tame journalists in Perugia to the waiting world. Many journalists based in Italy swallowed prosecution spin wholesale and continue to do so. Serious investigation was largely the work of American television companies and innocence networks that were more sympathetic to Knox and had the resources to challenge and unpick the evidence.

In the days after the latest verdict, many commentators have refused to believe that the culture of institutional corruption in Italy goes to the top and has completely undermined justice. Well it does, and it has.

Jury not sequestered

Juries in Italy are not sequestered, so they follow the case through biased media coverage as well as in court. In fact, jurors are encouraged to read as widely as possible, making court attendance almost a distraction from wall-to-wall newspaper and internet coverage. Jurors who have ‘researched’ cases on the internet in this way in the UK have been sent to prison.

The question of how far media intervention affected the jury in the latest trial was answered by Judge Nencini the day after the verdict. He admitted that the jurors discussed the case daily with their family members and friends when they went home at night. While at home, they were ‘bombarded with information’ – in other words, unverified gossip printed in tabloids and not presented in court. This literally was a trial by tabloid.

Scientific evidence corrupted

Italy’s use of so-called low-copy DNA evidence in this case has shocked the scientific world. Incompetent technicians tested contaminated samples by overriding machine controls in a lab that was not of the required standard for this type of work. In Knox and Sollecito’s first appeal, independent experts called in by Judge Hellmann demolished this bogus DNA evidence. The Italian Supreme Court subsequently dismissed this expert testimony, reinstated the flawed evidence and, demonstrating no understanding of science, demanded that contamination be ‘proved’ by the defence.

The Kercher family is pursuing a civil case in parallel with criminal trials

In the UK and the USA, we are used to the state prosecuting offenders. In Italy, it is common for the families of victims to pursue parallel civil cases at the same time, in the same courts before the same judges and juries. This means that defence teams can face two or three teams of lawyers who are all given their turn to defame the accused with ever more lurid presentations of how they believe the crime was carried out.

The Kerchers were advised to hire their own lawyer, Francesco Maresca, as soon as they set foot in Italy following Meredith’s murder. He has insulated and isolated them from the facts of the case and has proved to be a more inflammatory advocate against Knox and Sollecito than the state’s own lawyers. Although the Kercher family has attempted to remain aloof from the day-to-day court battles, Maresca arranged for letters and stories from the family to appear at strategic moments in the process. This would not be allowed in the UK or USA.

‘Evidence! We don’t need no stinking evidence!’

Advocates from England or the USA would be shocked by what their colleagues in Italy are allowed to do. Disproved evidence is reintroduced in subsequent hearings as ‘fact’ and as if it is still valid. Invented scenarios are presented to the court complete with imagined conversations, as if they represent what actually took place. Key witnesses, like murderer Rudy Guede, are not even cross-examined at the trial of those who are alleged to be his co-conspirators. In the first trial, a 20-minute computer-generated cartoon film of the prosecution’s view of the murder scenario was shown as if it was a credible reconstruction of the crime. It cost €182,000 to make and the cost was billed to the defendants. It was not placed in the trial record and has never been seen since.

In their totality, the combined theories presented to the three courts by two prosecutors were so illogical and utterly lacking in substance that the prosecutors, not the defendants, should have been on trial – for misconduct.

Who is ‘Harry Rag’?

The internet has come of age with this case. Articles, blogs and comments have proliferated. Hate sites against the defendants were set up and still flourish. A Google search for Amanda Knox exceeded one billion hits last weekend. Prominent pro-innocence campaigners unashamedly post using their real names. Pro-guilt campaigners are different. Most use fake identities and seem afraid to reveal themselves. The torch bearer for the haters, one ‘Harry Rag’, has cut and pasted a list of disproved lies beneath every article and blog he and his acolytes can find, for over five years. Harry is on a mission and his mission is not about truth and justice.

For years, Knox haters, based mainly in the UK, controlled the Wikipedia page on the case, until a petition persuaded Wikipedia founder Jimmy Wales to intervene and have the entry cleaned up. The haters moved on and created their own fake ‘wiki’, packed with disproved ‘facts’ and proceeded to tweet it to journalists on the case. The fake wiki has been widely used by the media in the days following the verdict and even supposedly responsible publications have linked to it. The result has been a rebroadcasting of bogus information that was either disproved over three years ago or which never made it to court at all.

The Harry Rag PR operation has succeeded, at least for now. Its moulding of public opinion, here and in Italy, undoubtedly impacted on the courts. Rumours of his identity have been swirling around the blogosphere for some time now. If an investigative journalist were to unmask him, there might be some sharp intakes of breath.

The Italian Supreme Court ruling and double jeopardy

The reversal of the 2011 acquittal has been criticised by many, including Judge Hellmann who presided over the acquittal, because the Supreme Court meddled with the facts of the case, rather than carrying out its constitutional role of simply ensuring that correct procedures were followed. Its motivation report is a facsimile of the prosecution’s summary of disproved evidence from the first trial. It ordered the new trial judge, Nencini, to deliver guilty verdicts, which he duly did.

The Supreme Court’s judgement is further compromised by its attempt to reconcile the already confirmed verdict against Rudy Guede, which stated that he acted with others, with Hellmann’s view that Guede probably acted alone and in any case acted without Knox and Sollecito. So when Nencini publishes his motivation report to justify his verdicts, within the next 90 days, he will have to rationalise the irreconcilable.

Many observers in the USA and elsewhere believe that Italy operates a double-jeopardy system. The defendants were held in prison for four years, the first two – before their conviction – allegedly because they were flight risks and because they might kill again. They were released on acquittal in 2011 and remain at large because, in the words of Judge Hellmann, ‘they did not commit the crime’. This is a step beyond a simple acquittal for lack of evidence. Any future attempt to extradite Knox will be considered in this context and seen as double jeopardy in action. If the legal process had not reached a conclusion in 2011, and the first appeal was merely another stage, why were they released at all?

Italian ‘face saving’

Italy has been embarrassed throughout the world by this case, but none are more embarrassed than the Italian lawyers who prosecuted it and are implicated in every mistake along the way. Justice is highly politicised in Italy and the ‘Party of the Prosecutors’ exercises enormous influence at every level, hence the overturning of Hellmann’s acquittal. For six years now, broad hints have been dropped that Sollecito could secure his own acquittal or a reduced sentence if he changed his story to implicate Knox and thereby get the prosecution off its hook.

Knox has always been the target

Nencini made this clear in a post-verdict interview when he said that if Sollecito had accused Knox from the witness stand, he would have been acquitted. For his frankness, Nencini was accused by Sollecito’s lawyers of unconstitutional behaviour and of revealing what should have been confidential discussions in the jury room.

The Supreme Court is expected to ratify the guilty verdicts in about a year’s time and the circus will then move on to the European Court of Human Rights, a body not affected by Italian face-saving niceties.

Italian justice has been on trial and is guilty as charged

In Italy, we are beginning to see signs that the tide is turning. The news magazine Oggi has been staunch in its support of Knox and Sollecito for some years now. And on the day after the verdict, the Rome daily La Repubblica wrote that the third verdict confirms that the case ‘from the very beginning has been judged more on the basis of sensation than actual evidence’.

It suggested Knox and Sollecito had ‘always been the perfect culprits’, and that ‘in reality, what is probably more at stake than assigning responsibility for a murder is the prestige of a part of the magistrature and the Umbrian police’.

Meanwhile, Sollecito’s lawyer Giulia Bongiorno said the case was a milestone as it was the first time that ‘two people have been convicted of a crime when there is no evidence putting them at the scene’.

In the UK, many of us still remember Lord Denning, who said when referring to the Birmingham Six case ‘it is better that an innocent man serves a life sentence than the law is seen to be making grave errors’. In Italy, this phrase could be embossed on the wall of every court. It is a country where the courts declared a woman wearing tight jeans could not have been be raped because she would have to have cooperated with her attacker; where geologists were found guilty of failing to predict an earthquake; and where a paedophile had a guilty verdict overturned because the 11-year-old girl he molested ‘had genuine feelings for him’. Perhaps the international attention of the Meredith Kercher case will give the cause of Italian judicial reform the boost it desperately needs.

Back in Britain, a week is a long time in journalism and soon the tabloids that sway in the wind with every twist in every story will begin to realise that Amanda Knox and Raffaele Sollecito are innocent after all and a grateful public will read the story all over again. Meanwhile, the Kercher family remains in limbo, trapped in an Italian spider’s web.